RENDERED: DECEMBER 9, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0114-MR
BERNIE PAYNE APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 17-CR-00213
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, JONES, AND MAZE, JUDGES.
CETRULO, JUDGE: The Muhlenberg Circuit Court denied the post-conviction
motion of Bernie Payne seeking to withdraw his guilty plea or, alternatively,
compel the Department of Corrections to recalculate his parole eligibility date.
Payne now appeals. Upon review, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
In 2003, and in a separate underlying matter, a jury of the Hickman
Circuit Court convicted Payne of four counts of rape in the first degree.
(Indictment No. 02-CR-00038). The facts that led to Payne’s 2003 rape
convictions were set forth in a separate opinion of this Court, which affirmed an
order denying Payne’s motion to vacate his judgment pursuant to RCr1 11.42. See
Payne v. Commonwealth, No. 2005-CA-1547-MR, 2007 WL 1378514 (Ky. App.
May 11, 2007). He was sentenced to imprisonment for a total of 30 years. Id.
at *1. In 2017, while serving his 2003 sentence at the Green River Correctional
Complex, Payne then violently assaulted another inmate, which led to his
subsequent indictment in the Muhlenberg Circuit Court (Case No. 17-CR-00213)
for Count 1 – assault in the second degree; Count 2 – promoting contraband; and,
Count 3 – persistent felony offender in the second degree.
In exchange for Payne’s guilty pleas, the Commonwealth agreed to
reduce Count 1 to assault in the second degree under extreme emotional
disturbance; dismiss Count 2; and, recommend a total sentence of imprisonment of
seven years under the PFO charge, to be served consecutively with his prior
sentence of imprisonment. On February 12, 2018, Payne appeared before the
Muhlenberg Circuit Court and pled guilty in accordance with the plea agreement.
1 Kentucky Rule of Criminal Procedure.
-2- On February 14, 2018, adhering to the plea agreement, the circuit court sentenced
Payne to imprisonment for a total of seven years, “to be served consecutively with
the sentence currently being served.”
Following Payne’s conviction in 02-CR-00038, and before Payne pled
guilty in 17-CR-00213, the Department of Corrections had set Payne’s parole
eligibility date at “October, 2022.”2 However, as a consequence of Payne’s guilty
plea in 17-CR-00213, the Department of Corrections revised his parole eligibility
date to March 19, 2024. The revision was set forth in a “release” document from
the Department of Corrections, filed of record on February 22, 2018.
That revision is Payne’s focus in this appeal. On January 10, 2022,
Payne filed a motion in the Muhlenberg Circuit Court under the auspices of
RCr 10.26 and CR3 60.03, in which he asked the circuit court to “issue an order to
the Department of Corrections to place the defendant’s parole date back to the date
of 2022 as guaranteed in his binding contract with this honorable Court, or in the
alternative, allow the petitioner to recant his plea agreement[.]” In support, he
argued he had accepted the plea agreement in 17-CR-00213 because he had been
“instructed by his counsel that his parole eligibility would not in any manner
2 A September 14, 2017 “Department of Corrections Resident Record Card,” which Payne filed as an exhibit below, provided that “October, 2022” was Payne’s parole eligibility date. 3 Kentucky Rule of Civil Procedure.
-3- change[.]” He reasoned, therefore, that one of two things had occurred: either his
trial counsel had misadvised him regarding the plea agreement, thereby providing
him ineffective assistance; or, the Department of Corrections had improperly
disregarded what he believed were the terms of his plea agreement, and had
consequently miscalculated his parole eligibility date.
Upon consideration, the circuit court denied Payne’s motion as
untimely and procedurally barred. In its January 12, 2022 order to that effect, the
circuit court explained in relevant part:
This matter is before the Court on motion for relief pursuant to CR 60.03. The Court has reviewed said motion and the record and is now sufficiently advised. The Court does ADJUDGE and ORDER:
1. Contrary to the Defendant’s assertion, his present motion does not constitute an independent action of the type contemplated in CR 60.02[4]. Moreover, as the final judgment herein was entered on February 14, 2018, the Defendant’s motion is, in any event, untimely.
2. Furthermore, the Defendant’s primary argument concerns how the Department of Corrections has calculated his parole eligibility date, for he states at p.2 of his motion, “The Department of Corrections changed and/or altered his judicial plea agreement and added two more years to his parole date . . . .” The Defendant is required to exhaust his administrative remedies before bringing the matter before the Court, and he must attach documents verifying that he has done so. Hensley v.
4 In light of how the circuit court prefaced its January 12, 2022 order, its reference to “60.02,” as opposed to 60.03 – which contemplates “independent actions” – is an apparent typo.
-4- Commonwealth, 355 S.W.3d 473, 475 (Ky. App. 2011). The Defendant has failed in this regard.
This appeal followed.
ANALYSIS
On appeal, Payne reasserts the arguments he made below, but entirely
ignores why the circuit court denied his motion. To be clear, Payne’s arguments
were, as the circuit court concluded, untimely and procedurally barred. As an
aside, the circuit court’s dispositive order did not mention one of the two rules
through which Payne sought post-conviction relief, i.e., RCr 10.26. But,
RCr 10.26 is merely a standard of review for certain egregious trial errors; it is not
a procedural mechanism that permits the filing of any kind of motion.5
As for the other procedural basis of Payne’s motion, CR 60.03, we
begin by reiterating the well-established criteria for obtaining relief pursuant to that
rule:
Civil Rule 60.03 permits an independent action for relief from a judgment “on appropriate equitable grounds.” However, “[r]elief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02 . . . .” CR 60.03.
5 In full, RCr 10.26 provides:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
-5- Generally, claimants seeking equitable relief through independent actions must meet three requirements. Claimants must (1) show that they have no other available or adequate remedy; (2) demonstrate that movants’ own fault, neglect, or carelessness did not create the situation for which they seek equitable relief; and (3) establish a recognized ground – such as fraud, accident, or mistake – for the equitable relief.
Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2nd Cir. 1997) (emphasis added).
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RENDERED: DECEMBER 9, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0114-MR
BERNIE PAYNE APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 17-CR-00213
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, JONES, AND MAZE, JUDGES.
CETRULO, JUDGE: The Muhlenberg Circuit Court denied the post-conviction
motion of Bernie Payne seeking to withdraw his guilty plea or, alternatively,
compel the Department of Corrections to recalculate his parole eligibility date.
Payne now appeals. Upon review, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
In 2003, and in a separate underlying matter, a jury of the Hickman
Circuit Court convicted Payne of four counts of rape in the first degree.
(Indictment No. 02-CR-00038). The facts that led to Payne’s 2003 rape
convictions were set forth in a separate opinion of this Court, which affirmed an
order denying Payne’s motion to vacate his judgment pursuant to RCr1 11.42. See
Payne v. Commonwealth, No. 2005-CA-1547-MR, 2007 WL 1378514 (Ky. App.
May 11, 2007). He was sentenced to imprisonment for a total of 30 years. Id.
at *1. In 2017, while serving his 2003 sentence at the Green River Correctional
Complex, Payne then violently assaulted another inmate, which led to his
subsequent indictment in the Muhlenberg Circuit Court (Case No. 17-CR-00213)
for Count 1 – assault in the second degree; Count 2 – promoting contraband; and,
Count 3 – persistent felony offender in the second degree.
In exchange for Payne’s guilty pleas, the Commonwealth agreed to
reduce Count 1 to assault in the second degree under extreme emotional
disturbance; dismiss Count 2; and, recommend a total sentence of imprisonment of
seven years under the PFO charge, to be served consecutively with his prior
sentence of imprisonment. On February 12, 2018, Payne appeared before the
Muhlenberg Circuit Court and pled guilty in accordance with the plea agreement.
1 Kentucky Rule of Criminal Procedure.
-2- On February 14, 2018, adhering to the plea agreement, the circuit court sentenced
Payne to imprisonment for a total of seven years, “to be served consecutively with
the sentence currently being served.”
Following Payne’s conviction in 02-CR-00038, and before Payne pled
guilty in 17-CR-00213, the Department of Corrections had set Payne’s parole
eligibility date at “October, 2022.”2 However, as a consequence of Payne’s guilty
plea in 17-CR-00213, the Department of Corrections revised his parole eligibility
date to March 19, 2024. The revision was set forth in a “release” document from
the Department of Corrections, filed of record on February 22, 2018.
That revision is Payne’s focus in this appeal. On January 10, 2022,
Payne filed a motion in the Muhlenberg Circuit Court under the auspices of
RCr 10.26 and CR3 60.03, in which he asked the circuit court to “issue an order to
the Department of Corrections to place the defendant’s parole date back to the date
of 2022 as guaranteed in his binding contract with this honorable Court, or in the
alternative, allow the petitioner to recant his plea agreement[.]” In support, he
argued he had accepted the plea agreement in 17-CR-00213 because he had been
“instructed by his counsel that his parole eligibility would not in any manner
2 A September 14, 2017 “Department of Corrections Resident Record Card,” which Payne filed as an exhibit below, provided that “October, 2022” was Payne’s parole eligibility date. 3 Kentucky Rule of Civil Procedure.
-3- change[.]” He reasoned, therefore, that one of two things had occurred: either his
trial counsel had misadvised him regarding the plea agreement, thereby providing
him ineffective assistance; or, the Department of Corrections had improperly
disregarded what he believed were the terms of his plea agreement, and had
consequently miscalculated his parole eligibility date.
Upon consideration, the circuit court denied Payne’s motion as
untimely and procedurally barred. In its January 12, 2022 order to that effect, the
circuit court explained in relevant part:
This matter is before the Court on motion for relief pursuant to CR 60.03. The Court has reviewed said motion and the record and is now sufficiently advised. The Court does ADJUDGE and ORDER:
1. Contrary to the Defendant’s assertion, his present motion does not constitute an independent action of the type contemplated in CR 60.02[4]. Moreover, as the final judgment herein was entered on February 14, 2018, the Defendant’s motion is, in any event, untimely.
2. Furthermore, the Defendant’s primary argument concerns how the Department of Corrections has calculated his parole eligibility date, for he states at p.2 of his motion, “The Department of Corrections changed and/or altered his judicial plea agreement and added two more years to his parole date . . . .” The Defendant is required to exhaust his administrative remedies before bringing the matter before the Court, and he must attach documents verifying that he has done so. Hensley v.
4 In light of how the circuit court prefaced its January 12, 2022 order, its reference to “60.02,” as opposed to 60.03 – which contemplates “independent actions” – is an apparent typo.
-4- Commonwealth, 355 S.W.3d 473, 475 (Ky. App. 2011). The Defendant has failed in this regard.
This appeal followed.
ANALYSIS
On appeal, Payne reasserts the arguments he made below, but entirely
ignores why the circuit court denied his motion. To be clear, Payne’s arguments
were, as the circuit court concluded, untimely and procedurally barred. As an
aside, the circuit court’s dispositive order did not mention one of the two rules
through which Payne sought post-conviction relief, i.e., RCr 10.26. But,
RCr 10.26 is merely a standard of review for certain egregious trial errors; it is not
a procedural mechanism that permits the filing of any kind of motion.5
As for the other procedural basis of Payne’s motion, CR 60.03, we
begin by reiterating the well-established criteria for obtaining relief pursuant to that
rule:
Civil Rule 60.03 permits an independent action for relief from a judgment “on appropriate equitable grounds.” However, “[r]elief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02 . . . .” CR 60.03.
5 In full, RCr 10.26 provides:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
-5- Generally, claimants seeking equitable relief through independent actions must meet three requirements. Claimants must (1) show that they have no other available or adequate remedy; (2) demonstrate that movants’ own fault, neglect, or carelessness did not create the situation for which they seek equitable relief; and (3) establish a recognized ground – such as fraud, accident, or mistake – for the equitable relief.
Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2nd Cir. 1997) (emphasis added). Further, an independent action for equitable relief from a judgment is unavailable if the complaining party has, or by exercising proper diligence would have had, an adequate remedy in the original proceedings.
Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005), abrogated on other
grounds by Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018).
More recently, the Supreme Court of Kentucky emphasized that
CR 60.03 “is intended as an equitable form of relief when no other avenue exists.”
Meece v. Commonwealth, 529 S.W.3d 281, 295 (Ky. 2017) (emphasis added).
Meece also clarifies that that the question of a defendant’s entitlement to
extraordinary post-conviction relief “is a matter left to the ‘sound discretion of the
court and the exercise of that discretion will not be disturbed on appeal except for
abuse.’” Id. at 285 (quoting Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky.
1996)). The familiar “test for abuse of discretion is whether the trial judge’s
-6- decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014).
Applying these criteria to the issues Payne advances on appeal, we
find no abuse of discretion in the decision of the circuit court. At the very least,
Payne failed to establish that he had no other available or adequate avenue of
relief; or that his need for equitable relief was not a product of his own fault or
neglect. Specifically, to the extent Payne maintains that his counsel misadvised
him regarding his plea agreement in 17-CR-00213, the “independent action” of
CR 60.03 is not a vehicle for asserting ineffective assistance of counsel. Rather, a
motion filed pursuant to RCr 11.42 is the only proper method of asserting such a
claim as a means of collaterally attacking a final judgment. See Gross v.
Commonwealth, 648 S.W.2d 853, 856-57 (Ky. 1983).
Furthermore, due to his own neglect, Payne no longer has that remedy
available to him. Indeed, even if we could construe Payne’s CR 60.03 motion as
an RCr 11.42 motion, he was required to file it “within three years after the
judgment becomes final, unless the motion alleges and the movant proves . . . that
the facts upon which the claim is predicated were unknown to the movant and
could not have been ascertained by the exercise of due diligence . . . .” RCr
11.42(10)(a). Payne’s claim of ineffective assistance of counsel could have been
ascertained within the three-year limitation period prescribed by the rule;
-7- consequently, he should have been aware of the alleged error and raised it in a
timely manner pursuant to RCr 11.42. Here, Payne filed his motion on January 10,
2022, almost four years after his conviction at issue became final. As the circuit
court correctly held, his motion was therefore untimely under any applicable
standard.
Inasmuch as Payne contends the Department of Corrections
improperly disregarded what he believed were the terms of his plea agreement and
consequently miscalculated his parole eligibility date, Payne also fails to establish
that he had no other available or adequate avenue of relief or, as the circuit court
stated, that he exhausted his administrative remedies before bringing this matter.
As explained in Hensley, 355 S.W.3d at 475, “KRS[6] 454.415 sets forth proper
procedure for inmates who raise sentence calculation questions. Subsections (1)
and (2) state that all administrative remedies must be exhausted.” Here, nothing in
Payne’s brief or the record indicates that Payne has filed an administrative
complaint or appeal; and “KRS 454.415 specifically forbids inmates from bringing
civil actions before exhausting the administrative remedies. Because the law
provides for an administrative procedure, [Payne] is required to raise his sentence
calculation questions in accordance with the procedure provided by Kentucky
6 Kentucky Revised Statute.
-8- law.” Id. Accordingly, this additional aspect of the circuit court’s order was
likewise correct.
CONCLUSION
The Muhlenberg Circuit Court committed no error in denying Payne’s
post-conviction motion. We therefore AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Bernie Payne, pro se Daniel Cameron LaGrange, Kentucky Attorney General of Kentucky
Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
-9-